# Petition — DiCarlo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1180%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 834 ## Text In the L miciaer RODAK, JR. CLERK Supreme Court of the United States. - Ocroser Term, 1978. No. @y-179% JOSEPH J. C. DiCARLO anp RONALD C. MacKENZIE, PETITIONERS, v. UNITED STATES OF AMERICA, RESPONDENT. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit. Francis J. DiMento, DiMento & SULLIVAN, 100 State Street, Boston, Massachusetts 02109. (617) 523-5253 Attorney for Petitioner Joseph J.C. DiCarlo. Ear_e C. Coo.ey, Hae & Dorr, 60 State Street, Boston, Massachusetts 02109. (617) 742-9100 Davin J. Fine, ROSENBERG, BAKER & FINE, Of Counsel: 133 Mt. Auburn Street RoseNnBerGc, BAKER & FINE, Cambridge, Massachusetts 02138. 133 Mt. Auburn Street, (617) 354-2937 Cambridge, Massachusetts 02138. Attorneys for Petitioner (617) 354-2937 Ronald C. MacKenzie. BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS. Table of Contents Opinions Below Jurisdiction Questions Presented Constitutional and Statutory Provisions Involved Statement of the Case A. Violation of Brady and Agurs B. Conflict of Interest 1. Role of Harrington and Joyce in directing DiCarlo to Hurley 2. Circumstances Surrounding setting and payment of Hurley's fee 3. Role of Harrington and Joyce in directing MacKenzie to Mulkern 4. Failure of Hurley and Mulkern to elicit the names Of Harrington and Sargent as recipients of Suspicious payments from MBM, and to pursue the line of inquirv use of the names would have opened up 14 16 16 ii Reasons for Granting the Writ I. Certiorari should be granted to resolve the sharp conflict between the First Circuit's decision below and the Third Circuit's decision in United States v. McCrane on what constitutes a “specific request" for exculpatory evidence with the meaning of Agurs. II. Certiorari should be granted 21 21 iii 2. Legal standards for evidentiary hearing 33 C. Elements of Claim that the Constitutional Right to the Undivided Loyalty of Counsel Has Been Violated 36 D. Application of Legal Principles Here 40 E. The Erroneous Legal Analysis Adopted by the Court Below: The Bifurcation Between Dual Representation Standards and to enable this Court to continue the work it began in Holloway v. Arkansas of bringing order and cohesion into the currently confused state of the law on the criminal defendant's con- stitutional right to the undi- vided loyalty of his counsel. In particular, this case provides an ideal vehicle for clarifying when a defendant is entitled to an evidentiary hearing on his claim that a new trial is required because his attorney was involved in a conflict of intcucrest. 27 A. Introduction 27 B. Evidentiary Hearing 31 1. Judicial notice of facts relating to the investigaticn of the MBM matter 31 Joint Representation Standards 47 F. The Court of Appeals’ Invalid Finding of Waiver 55 Conclusion 58 Appendix Opinion of the United States Court of Appeals for the First Circuit la Opinion of the United States District Court for the District of Massachusetts 17a Affidavit of Assistant United States Attorney Edward J. Lee 32a iv Table of Authorities Presented Cases Austin v. Erickson, 477 F.2d 620 (8th Cir. 1973) Blackledge v. Allison, 97 S.Ct. 1621 (1977) 34, Brady v. Maryland, 373 U.S. 83 (1963) 8, 9, 21, 22, Chapman v. California, 386 U.S. 18 (1967) Cinema 5, Ltd. v. Cinema, Inc., 528 F.2d 1384 (2d Cir. 1976) Commonwealth v. Geraway, 364 Mass. 168, 301 N.E.2d 814 (1973) Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975) 37-38, Glasser v. United States, 315 U.S. 60 (1942) 27, 38-39, Holloway v. Arkansas, 46 U.S.L.W. 4289 3, (U.S., April 3, 1978) 30, 38, Laskey Bros, Inc. v. Warner Bros., Pictures, Inc., 224 F.2d 824 (2d Cir. 1955) Lollar v. United States, 376 F.2d 243 (D.C.Cir. 1967) Machibroda v. United States, 38 U.S. 487 (1962) 56 35 39 40 40 39 57 27 39 40 35 34 Vv Miller v. United States, 564 F.2d 103 (lst Cir. 1977) 47, 48, 49 Porter v. United States, 298 F.2d 461 (5th Cir. 1962) 28, 35-36 United States v. Agurs, 427 U.S. 97 (1976) passim United States v. DiCarlo, 565 F.2d "02 (1977), cert. denied, 46 U.S.L.W. 3586 (U.S. March 20, 1978) 8 United States v. Donahue, 560 F.2d 1039 (lst Cir. 1977) 39, 40, 48 United States v. Hurt, 543 F.2d 162 (1976) 39 United States v. James, 505 F.2d 828 (5th Cir. 1975), cert. denied, 421 U.S. 1000 55 United States v. LaVallee, 282 F.Supp. 968 (E.D.N.Y. 1968) 57 United States v. McCrane, 547 F.2d 204 (3d Cir. 1976), reaffirming United States v. McCrane, 527 F.2d 906 (3d Cir. 1975) 2, 14 2h, 22, 23, 24, 25 Von Moltke v. Gillies, 332 U.S. 708 (1948) 27, 28 vi Zurita v. United States, 410 F.2d 477 (7th Cir. 1969) Constitutional and Statutory Provisions United States Constitution Fifth Amendment Sixth Amendment 18 U.S.C. §1951 §1952 28 U.S.C. §1254(1) §2255 6, Miscellaneous "Anatomy of a Scandal 1964: U Mass Boston is born, 1978: MBM probe goes on," The Boston Herald American, March 14, 1978 The Boston Globe, December 24, 1977, p. 1, col. 1-6 The Boston Herald American, December 24, 1977, p. l, col. 1-6 Comment, Conflict of Interest in Multiple Representation of Cri- minal Co-Defendants, 68 Journal of Criminal Law & Criminology 226 (1977) 36-37, Hyman, Joint Representation of Mul- tiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra Law Review 315 (1977) 29, 36 &> N s~ OV oO 32 32 32 38 30 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1977 No. JOSEPH J. C. DiCARLO and RONALD C. MacKENZIE, Petitioners, Vv. UNITED STATES OF AMERICA, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit. Joseph J. C. DiCarlo and Ronald C. MacKenzie petition for a writ of certio- rari to review the judgment of the United States Court of Appeals for the First Circuit entered in this case on April 20, 1978. Opinions Below The opinion of the court of appeals, not yet reported, is reproduced in the 2 Appendix at pp. la-l6a. The opinion of the district court, also not reported, is reproduced in the Appendix at pp. l7a- 3la. Jurisdiction The judgment of the court of appeals was entered on April 20, 1978. The time for filing this petition was extended to and including June 19, 1978. This Court's jurisdiction is invoked under 28 U.S.C. §1254(1). Questions Presented 1. This case presents a timely opportunity for this Court to define what constitutes a "specific request for excul- patory evidence" as that concept is used in United States v. Agurs, 427 U.S. 97 (1976), and to resolve a sharp conflict between the decision of the First Circuit below and the decision of the Third Cir- cuit in United States v. McCrane, 547 F.2d 204 (1976) with respect to the following question: Does a pretrial discovery request for disclosure of all statements, promises and rewards given to government witnesses, 3 constitute a specific request, as defined in Agurs, for favorable letters written by the government to the prospec -ive business customers of a key prosecution witness? 2. This case presents the opportu- nity for this Court to continue the work it began in Holloway v. Arkansas, 46 U.S. L.W. 4289 (U.S., April 3, 1978) of bring- ing order and cohesion into the currently confused state of the law on the criminal defendant's constitutional right to the undivided loyalty of his counsel. In particular, this case squarely poses the following questions: a.i. What must a criminal defen- dant show to obtain an evidentiary hearing on his claim that he is entitled to a new trial because his trial attorney was involved in a conflict of interest? ii. Was it proper to deny an evi- dentiary hearing here where petitioners alleged with particularity (a) that their trial attorneys had a conflict of interest in protecting two prominent Massachusetts public officials, (b) that this conflict infected the attorneys’ decision not to 4 elicit the names of the officials before the jury as recipients of questionable payments from the same firm that was alleged to be the victim of the extor- tion with which petitioners were charged, and (c) that the decision not to elicit the names prejudiced petitioners’ defense? b. Was it proper to deny sum- marily petitioners’ claim for relief where the court below conceded the interest of the two officials in avoiding exposure but sought to discount the conflict on the basis of speculation that this interest was not as great as petitioners alleged -- specula- tion contradicted by the political scandal initiated when disclosure of the payments to the public officials ultimately became public 11 months later at the oral argument of petitioners' new trial motion? c. Was it proper for the court below to evaluate petitioners' conflict of interest claim by a more stringent 5 test that it would have applied ia a case of "joint representation,"where one attor- ney represents two or more defendants in the same case? In particular, was it pro- per for the court to apply a standard which required petitioners to prove that their trial attorneys subjectively in- tended to sacrifice their interests to those of the two public officials, and to reject petitioners’ claim without even affording petitioners the opportunity to meet that standard at an evidentiary hearing, at which they could question their trial attorneys? dad. Was it proper for the court below to rely on an implicit finding that petitioners had waived their right to the undivided loyalty of their counsel, where that finding was based onthe court's spe- culation and given that petitioners denied waiver and claimed that, as a matter of law, waiver could not be found unless the government carried its burden of proving a “knowing and intelligent waiver" at an evidentiary hearing. 6 Constitutional and Statutory Provisions Involved The Fifth Amendment to the United States Constitution provides in perti- nent part: "No person shall ... be deprived of life, liberty, or property, without due process ee The Sixth Amendment to the United States Constitution provides in perti- nent part: "In all criminal prosecutions, the accused shall enjoy the right - + « « to have the Assistance of Counsel for his defence." Section 2255 of Title 28 of the United States Code, establishing the pro- cedure for motions to vacate a sentence imposed by a federal court, provides in pertinent part: ". .« « Unless the motion and the files and records of the case con- Clusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attor- ney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." 5 Statement of the Case Petitioners were jointly tried and convicted on an eight-count indictment charging conspiracy and substantive vio- lations of the Hobbs and Travel Acts, 18 U.S.C. §§1951 and 1952. These offenses were alleged to have been committed between February 1971 and July 1972, during which period both petitioners were members of the Massachusetts Senate. The essence of the charges against petitioners is that they planned and executed a scheme to extort $40,000 from McKee-Berger- Mansueto, Inc. ("MBM"), a New York based construction management firm. In December 1969, MBM was awarded a multi-million dollar contract to oversee construction of a new campus for the University of Massachusetts at Columbia Point in Boston. In 1971, a legislative committee chaired by petitioner DiCarlo investigated the contract. At petitioners' trial, the pro- secution sought to prove that petitioners extorted money from MBM by exploiting its fear that the committee's investigation would result in an unfavorable report 8 which would jeopardize MBM's contract and financial position generally. Petitioners' convictions were af- firmed on direct appeal, United States v. DiCarlo, 565 F.2d 802 (1977), and this Court denied their petition for certio- rari, 46 U.S.L.W. 3586 (U.S., March 20, 1978). While their direct appeal was pend- ing, petitioners filed a motion for a new trial in the district court on the grounds, inter alia, that: a. The government Suppressed evidence in violation of its duties under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 (1976). b. Their trial counsel had been involved in a conflict of interest which precluded them from representing their clients with the undivided loyalty the Constitution requires. Petitioners requested an evidentiary hearing on each branch of their new trial motion and also filed a motion for dis- covery. The district court, however, 9 rejected petitioners' motion for dis- covery and their request for an eviden- tiary hearing, and summarily denied their new trial motion. See pp. 17a-30a. Petitioners now seek a writ of certiorari to review the decision of the court of appeals affirming this summary rejection of petitioners' claims. A. Violation of Brady and Agurs Prior to the commencement of trial on January 24, 1977, the prosecutor, Assis- tant United States Attorney Edward J. Lee, wrote two letters to prospective customers of MBM. Petitioners contend that these letters were highly critical evidence of promises, inducements or rewards given by the government to the MBM witnesses, and that the government's failure to produce the letters in response to petitioner's pretrial discovery requests violated peti- tioners' right to a fair trial under Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Agurs, 427 U.S. 97 10 (1976). The first letter, dated September 2, 1976, was written in response to a letter from a public agency in New Jersey stating that it was considering awarding a con- sulting engineer contract to MBM. Mr. Lee's letter stated that the indictment charged that MBM and its principals "were the victims of an extortion scheme," that MBM and its principals were not charged in the indictment as defendants or co- conspirators, and that they "have coope- rated from the outset with federal autho- rities in the conduct of the investiga- tion which led to the indictment." The letter concluded, "Further, this office is not aware of any reason why MBM should be disqualified from public work." a.t 235. Mr. Lee's second letter, dated December 10, 1976, was in response to a 11 tentatively selected for participation in a public project, and requesting, among other things, that the United States Attorney in Boston provide the mayor's office with any information "that in any way relates to improper activities by this firm [MBM] in its dealings with agencies within your jurisdiction." A. 236. Mr. Lee's second letter was almost iden- tical to his first and, like the first, concluded with the statement: "Further, this office is not aware of any reason why McKee- Berger-Mansueto, Inc. should be disqualified from public work." A. 241. In United States v. Agurs, 427 U.S. 97 (1976), this Court held that a prose- cutor had a constitutional duty to dis- close exculpatory evidence that is "ma- terial" to the defense. The Court also ruled, however, that the standard of letter from the mayor's oftice in San Francisco stating that MBM had been materiality is different when the defense requests specific evidence than when the l defense makes no request, or only a gene- "A." denotes references to the appen- dix filed in the court of appeals. ral one, for exculpatory material. When a specific request for exculpatory evi- 12 dence is made, suppression of the evi- dence will require a new trial so long as the suppressed evidence meets a mini- mum standard of materiality: "(IJ]f the subject matter of such a [specific] request is material, or indeed if a sub- stantial basis for claiming materiality exists, it is rea- sonable to require the prosecu- tor to respond either by fur- nishing the information or by submitting the problem to the trial judge. When the prosecu- tor receives a specific and relevant request, the failure to make any response is seldom, if ever excusable." 427 U.s. at 106 (emphasis added). When, on the other hand, no request, Or only a general request, for exculpa- tory evidence is made, the suppressed evidence must meet a more stringent stan- dard of materiality. In such a situa- tion, a new trial will be required only if the trial judge, evaluating the sup- pressed evidence in the context of the entire trial record, determines that the "omitted evidence creates a reasonable doubt that did not otherwise exist." 427 U.S. at 112. “ : eb ela 13 In their pretrial Consolidated Motion for Discovery, petitioners sought discovery of "23. All statements or promises or rewards of any kind, or tending in any way, directly or indirectly, to induce or encourage the giving of testimony, which statements have been made to any persons whom the Government intends to call as wit- nesses at the trial of the indict- ment herein. "24. All evidence of any kind favorable to the defendants material either to guilt or punishment, in- Cluding without limitation that which may tend to be exculpatory, to impeach or discredit incrimina- tory evidence or to mitigate the crime charged, or which may lead to evidence of such character." Appendix on Direct Appeal, p. 60. Petitioners contend that item 23 consti- tuted a specific request within the meaning of Agurs for the letters written by prosecutor Lee and for all communica- tions between the government and the MBM witnesses relating to the letters. The court of appeals rejected this Claim. Opinion, pp. 10a-l4a. As demon- Strated below, this ruling is squarely in conflict with the decision of the Third 14 Circuit in United States v. McCrane, 547 F.2d 204 (3d Cir. 1976). B. Conflict of Interest The relevant contentions contained in petitioners' new trial motion, which must be accepted as true for present purposes because petitioners' motion was denied summarily, may be summarized as follows. 1. Role of Harrington and Joyce in Directing DiCarlo to Hurley In June 1975, over one year prior to the return of the indictments in this case, the president of the Massachusetts Senate, Kevin B. Harrington, informed petitioner DiCarlo that he was the sub- ject of a federal criminal investigation. A. 160. Harrington suggested that DiCarlo obtain the services of an attor- 2 this information. Petitioners maintain that this in itself is a potentially Significant question which they should have been able to explore in an evi- dentiary hearing. It is unclear how Harrington obtained 15 ney, and recommended Walter J. Hurley. Id. Hurley was at all times relevant to this case associated in the practice of law with Thomas M. Joyce. A. 148, 160, 163, 174. Joyce was a well known lobbyist and lawyer who had particularly close ties with Harrington and former Governor Francis W. Sargent. A. 148, 160, 168. Indeed, petitioners alleged that Joyce was "the attorney, political advisor and close friend and associate" of Harrington and Sargent. A. 148. Harrington had DiCarlo meet with Joyce who in turn gave DiCarlo instruc- tions for meeting with Hurley. A. 160. At one point, Joyce told DiCarlo that he knew someone in Washington in the Justice Department who would be able to keep him abreast of the progress of the investigation, and thus enable him to alert Hurley of any developments. A. 1612 3 Like Harrington's intelligence con- cerning the fact that DiCarlo was the subject of a criminal investigation, Joyce's claim that he had a "source" in the Justice Department is a circumstance that petitioners should have been able to probe in an evidentiary hearing. 16 2. Circumstances Surrounding Setting and Payment of Hurley's Fee When DiCarlo first met with Hurley, there was no discussion of fees. A. 16l. Subsequently, DiCarlo himself raised the question of fee with Hurley on several occasions, but was told each time by Hur- ley that Joyce would talk to him. aA. 163. On another occasion, DiCarlo raised the subject with Harrington, who told DiCarlo not to worry "because Joyce would take care of Mr. Hurley's fee." Id. Finally, after more insistence on DiCarlo's part, Hurley set a fee of $10,000, $9,500 of which DiCarlo paid in a series of four checks. A. 163. Hurley endorsed each of these checks to the order of Joyce, and each was deposited in the account of Joyce's law firm. Id. 3. Role of Harrington and Joyce in Directing MacKenzie to Mulkern Petitioner MacKenzie first found out that he was the subject of a criminal investigation from DiCarlo, who had ob- tained this information from Hurley. A. 161, 176. DiCarlo told MacKenzie he should retain attorney Robert V. Mulkern. A. 176. When MacKenzie informed DiCarlo 17 that he wanted to retain his present counsel, Earle C. Cocley, DiCarlo became agitated and told MacKenzie it was very important that he retain Mulkern and not Cooley. A. 177. Hurley had told DiCarlo to make sure that MacKenzie retained Mulkern because it was extremely impor- tant that MacKenzie be represented by a lawyer who would be friendly to them and with whom Hurley could work cooperatively. A. 161. Despite misgivings, MacKenzie acceded to DiCarlo's urging and retained Mulkern. A. 177. As the matter progressed, how- ever, MacKenzie became concerned that Mulkern was not giving his case the time and attention it required. A.177. On more than one occasion, MacKenzie ex- pressed dissatisfication to DiCarlo about Mulkern. Id. DiCarlo reassured Mac- Kenzie that Hurley was leading the defense and had the situation well in hand. A. 162, 177. Joyce told DiCarlo that it was important that Mulkern continue as Mac- Kenzie's attorney, that DiCarlo was only on the perimeter of the investigation and was being hurt by MacKenzie, and that what was done for MacKenzie would be 18 helpful to DiCarlo. A. 162. 4. Failure of Hurley and Mulkern to Elicit the Names of Harring- ton and Sargent as Recipients of Suspicious Payments from MBM, and to Pursue the Line of Inquiry Use of the Names Would Have Opened Up On the sixth day of trial, prosecu- tor Lee furnished Hurley and Mulkern with materials containing reports of FBI interviews with MBM president McKee, who was then on the stand, and MBM officer, Jack Thomas, who had yet to testify. These materials revealed, inter alia, statements of MBM officials that MBM had made payments to certain Massachusetts politicians, including a $2,000 payment to Senate President Harrington, and two payments of $10,000 each to Albert Manzi, at least one of which was to be a politi- cal contribution for then Governor Sargent. A. 26-31. After this report was turned over to Hurley and Mulkern, they discussed it at a meeting during a recess with DiCarlo and MacKenzie. A. 163-164, 178-178. DiCarlo instructed Hurley without hesitation that 19 the information concerning the payments to Harrington and Sargent should be used in the defense. Id. DiCarlo said, "Use it, if it's helpful. Bring it out. With- hold nothing." Id. MacKenzie concurred. Id. Nevertheless, despite these instruc- tions, Hurley and Mulkern never elicited the names of the recipients of the pay- ments before the jury. The failure to elicit the names of Harrington and Sargent was prejudicial to the petitioners because, among other things, use of the names would have laid the groundwork for a defense that MBM's interests were already protected by its payments to officials higher and more powerful than either DiCarlo and Mac- Kenzie and that, consequently, any pay- ments to or for the petitioners could not have been induced by fear or under color of official right. Evidence of the pay- ments to Harrington and Sargent would have shown that MBM had "friends in high places" who could have helped them resist the type of pressure which the MBM wit- nesses alleged that the petitioners had 20 communicated. Thus, the evidence would have signficiantly assisted the peti- tioners in arguing to the jury that any payments to or for the petitioners were no different than the numerous other payments which MBM made to public officials.* . In grand jury testimony which he gave in July 1975, MBM employee William F. Harding stated that he had delivered "hundreds" of sealed envelopes containing "campaign contributions" to government officials "all over the country." Appendix on Direct Appeal, pp. 910-911. 21 Reasons for Granting the Writ I. Certiorari should be granted to resolve the sharp conflict between the First Circuit's decision below and the Third Circuit's decision in United States v. McCrane on what constitutes a "specific request" for exculpatory evidence within the meaning of Agurs. As indicated above, this Court held in Agurs that a prosecutor has a consti- tutional duty to disclose exculpatory evidence that is "material" to the de- fense, and that the standard of materia- lity is substantially different when the defense makes a specific request for exculpatory evidence than when it makes no request, or only a general one. But although the differing standards of . materiality are defined by the Court with some precision, the opinion in Agurs con- tains no guidelines for determining when a request should be deemed "specific" and when "general." The only guidance the opinion provides is in the frorm of a few, sparse illustrations. Thus, the Court gives as an example of a specific request the request made in Brady itself, where defense counsel sought all extrajudicial 22 statements made by Brady's accomplice, Boblit. 427 U.S. at 104. And, the Court gives as examples of general requests, a request for "all Brady material" or "anything exculpatory." 427 U.S. at 106. Beyond these few examples, however, the Court leaves the task of definition to another day. The present case is an ideal vehicle for the Court to take up where it left off in Agurs. The facts here are remarkably similar to those in United States v. McCrane, 547 F.2d 204 (3d Cir. 1976) ("McCrane II"), reaffirming United States v. McCrane, 527 F.2d 906 (3d Cir. 1975) ("McCrane I"), after remand for further consideration in light of United States v. Agurs, 427 U.S. 97 (1976). In McCrane, as here, the presecutor failed to disclose letters he had written to pro- spective customers of a key government witness. And in McCrane II, as here, the issue arose as to whether a discovery request made by the defense constituted a "specific request" for the letters with- in the meaning of Agurs. In McCrane, the request at issue sought 23 "(M]aterial which may be used to impeach prosecution witnesses, including but not limited to any standards used by the Department of Justice, the Treasury Depart- ment, the Internal Revenue Ser- vice or the United States Attor- ney in declining prosecution of Similar cases." 547 F.2d at 207. The Third Circuit held that this request was sufficiently focused to invoke the "specific request" standard of materia- lity under Agurs. The court stated, in words that apply with even greater force here: "It requires no profound intel- lectual analysis to perceive that the defense was seeking material that might provide a basis for a Claim of prosecutorial favoritism or preferential treatment of government witnesses." 547 F.2d at 207. Moreover, it must be emphasized that .M arguing McCrane II before the Third Circuit, the government explicitly con- ceded that McCrane's request ""would have been sufficiently specific if it had requested dis- closure of all promises made to the witness and all actions under- taken on the witness’ behalf or at the witness’ request.'" 547 F.2d at 208. 24 In other words, the government conceded in McCrane that precisely the type of request the petitioners made here was a specific request, within the meaning of Agurs, requiring disclosure of the type of recommendation letters at issue here. Nevertheless, despite this conces- sion by the government in McCrane, > and despite the fact that McCrane II was decided two months before the commence- ment of trial here, thus putting the government on notice that the letters at issue here constituted Brady material which it was required to disclose, the court of appeals below holds that the government's failure to disclose the ° Indeed, far from appreciating the Significance of the government's con- cession in McCrane, the court below actually seeks to use the concession as a means for distinguishing McCrane by suggesting that the Third Circuit would not have ruled as it did had the conces- sion not been made. Opinion, p. 13a. The court below refuses to recognize the possibility that the government made the concession it did in McCrane because the concession represented its view of the law, and that the Third Circuit relied on the concession because it concurred in that view. 25 letters was not a violation of peti- tioners' constitutional rights. In so ruling, the court places itself squarely in conflict with the ruling of the Third Circuit in McCrane. Thus, the court below states that it views the McCrane request as "a classic example of a non- specific request as defined in Agurs, and decline[s] to accept McCrane's contrary view" (Opinion, p. 13a).° This candid acknowledgement of disagreement sets the stage for a definitive resolution of the matter by this Court.’ 6 The court below also states that it rejects McCrane's statement that "the mere act of writing the letters was preferen- tial treatment," unless "read in conjunc- tion with the evidence, elswhere noted, that they were written at the request of the witness's counsel." Opinion, p. l3a. u One further aspect of the opinion below should be noted. In ruling that petitioners’ discovery request was not a specific request within the meaning of Agurs, the court of appeals relies in part on a one-page affidavit submitted by prve- secutor Lee. At first glance this affi- davit (reproduced at pages 32a-33a of the appendix hereto) appears to contain a categorical denial that prosecutor Lee or anyone else associated with the (cont. on page 26) 26 7 (cont. from page 25) government to his knowledge, ever had any discussion with any MBM witness con- cerning the letters at issue here. Indeed, the court of appeals appears to have accepted the affidavit as containing such a denial. Opinion, p. 14a. In fact, a close reading of the affidavit reveals that it actually says nothing at all about the letters in question. The affidavit speaks only of “letters of recommendation" and specifically denies that Lee ever wrote "such a letter of recommendation." Since Lee obviously wrote the letters in question here, it is plain that the affidavit does not consider the letters here as letters of recommendation. Thus, the affidavit leaves entirely open the question of whether the letters at issue here were ever discussed with any MBM witness. At the very least, this defect in Lee's affidavit entitles petitioners to an evidentiary hearing on the issue of whether such discussions ever took place. 27 II. Certoriari should be granted to enable this Court to continue the work it began in Holloway v. Arkansas of bringing order and cohesion into the currently con- fused state of the law on the criminal defendant's constitu- tional right to the undivided loyalty of his counsel. In par- ticular, this case provides an ideal vehicle for clarifying when a defendant is entitled to an evidentiary hearing on his claim that a new trial is required because his attorney was involved in a conflict of interest. A. Introduction This case presents a timely oppor- tunity for this Court to resolve impor- tant issues concerning a criminal defen- dant's constitutional right to the undi- vided loyalty of his counsel. This Court recognized the right to undivided loyalty of counsel as a dis- tinct component of the constitutional right to effective representation over 35 years ago in Glasser v. United States, 315 U.S. 60 (1942). Since that time, the perception of the importance of that right has been greatly intensified. E.g., Von Moltke v. Gillies, 332 U.S. 708 28 (1948);° porter v. United States, 298 F.2d 461 (5th Cir. 1962) .° But while courts agree in principle about the importance of the right to the undivided loyalty of counsel, there has been a great deal of disagreement and con- fusion about how that right should be en- forced. In particular, courts have differed widely on what a defendant who claims that his right to undivided loaylty has been violated must show in order to obtain relief. What constitutes "The right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his Client ..« « "Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision." 332 U.S. at 725-726. 9 In Porter, the Fifth Circuit declared that a defendant is constitutionally entitled to : "a vigorous advocate having the single aim of acquittal by all means fair and honorable [and who is not] hobbled or fettered or restrained by commitments to others." 298 F.2d at 463. 29 a conflict of interest? What evidence must the defendant adduce to establish a conflict of interest? Is proof that a conflict of interest existed sufficient to entitle the defendant to relief, or must the defendant also show that he was "prejudiced" by the conflict? If an independent showing of "prejudice" is necessary, what constitutes prejudice for this purpose, and what does the defendant have to do to demonstrate it? There is substantial disagreement about all of these questions, as well as a great many others. Indeed, a commentator writing in 1977 lamented: "The courts, however, have been unable to agree on any coherent and uniform standard for determining what constitutes a conflict of interest ... . [NJot only is there confusion, but these differing views pervade each area of the law "Yet for all this confusion and disagreement, the Supreme Court has refused to consider the problem in any meaningful way. Each circuit continues to struggle to formulate its own rules and approaches. Each year the confusion grows greater among the circuits. The end result is that the law with regard to the 30 sixth amendment right to the effec- tive assistance of counsel has developed without cohesion of thought or unity of purpose." Hyman, Joint Representation of Mul- tiple Defendants in a Criminal Trial: The Court's Headache, 5 Hofstra Law Review, 315, 318-320 (1977) (footnotes omitted). In Holloway v. Arkansas, 46 U.S.L.W. 4289 (U.S., April 3, 1978), this Court took the first step toward bringing order and cohesion into this area of the law. But even in the course of its opinion, this Court referred to issues “on which the courts have taken divergent ap- proaches" which the decision in Holloway would not resolve. 46 U.S.L.W. at 4291. In particular, the Court stated that: “appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defen- dants were deprived of their right to the effective assistance of counsel." Id. The present case provides. an ideal opportunity to resolve this issue, expressly left open by Holloway, and to continue the work of bringing "cohesion 31 of thought” and "unity of purpose" into the currently confused state of the law on the defendant's right to the undivided loyalty of counsel. B. Evidentiary Hearing The present case provides a timely opportunity for this Court to clarify the standards for determining when a criminal defendant is entitled ‘to an evidentiary hearing on his claim that a new trial is necessary because his attorney was involved in a conflict of interest. 1. Judicial Notice of Facts Relating to the Investi- gation of the MBM Matter To put petitioners' demand for an evidentiary hearing in context, it is necessary for the Court to take judicial notice of certain facts. This is in keeping with the decision of the court of appeals, which found that it could take judicial notice "of the present widespread concern over the MBM matter." Opinion, p. 7a, n. 4. As indicated above, the federal pro- secutor disclosed to petitioners’ trial counsel the evidence of the MBM payments 32 to Harrington and Sargent on February l, 1977. That evidence did not become pub- lic during the trial, or indeed for ll months afterward. In fact, the evidence only became public in late December 1977 when oral argument was heard in open court on petitioners' motion for a new 10 The public disclosure of this trial. evidence touched off one of the largest scandals in Massachusetts history -- a scandal that has spawned numerous inves- tigations into the awarding of the MBM contract and into the awarding of state construction contracts in general,/} The principal investigation which has been conducted thus far is that of the Massa- chusetts legislature's Comaittee on Post Audit and Oversight, which has taken sworn testimony from numerous witnesses including Harrington and Sargent. New 10 See The Boston Globe, December 24, 1977, p. 1, col. 1-6; The Boston Herald American, December 24, 1977, p. 1, col. 1-6. at See, e.g., "Anatomy of a Scandal 1964: U Mass Boston is born, 1978: MBM probe goes on," The Boston Herald American, March 14, 1978. 33 disclosures concerning the MBM matter have appeared almost daily on the front pages of Massachusetts newspapers ever since late December 1977, and a number of the investigations into the MBM matter are still in progress and are expected to remain in progress for months to come. In stark contrast to the burst of investigatory activity which it initiated, petitioners’ motion for a new trial was summarily denied without affording peti- tioners the right to pursue their claims in court through the discovery process or through an evidentiary hearing. This summary denial was in plain violation of petitioners’ constitutional rights. 2. Legal Standards for Evidentiary Hearing Although, when petitioners initially asserted their claim of conflict of interest they were not yet in custody, both the district court and the court of 34 appeals treated the claim as falling under 28 U.S.C. §2255. That statute provides that a defendant must be granted an evidentiary hearing "({uJnless the motion and the files and records of the case conclusively show that [he] is entitled to no relief." Accordingly, this Court has made it clear that where the facts forming the basis of a §2255 motion fall outside the record, an evidentiary hearing is mandatory. Machibroda v. United States, 386 U.S. 487 (1962). Similarly, in Blackledge v. Allison, 97 S.Ct. 1621 (1977), this Court held that a state prisoner's petition for habeas corpus could not be summarily denied where the allegations of his petition were not “vague or conclusory," and where it could not be said that the allegations, when viewed against the record, were "palpably incredible" or “patently frivolous or false." 97 S.Ct. at 1630. The Court ruled that just as a motion for summary judgment in a civil case must be denied where there is a genuine issue of material fact, sO a motion to dismiss a habeas 35 petition summarily must be denied where the petition's "facially sufficient allegations have sufficient basis in fact to warrant plenary presentation of evidence." 97 S.Ct. at 1632. Applying these principles to peti- tioners' conflict of interest claim, there can be no question that the courts below erred in denying petitioners an evidentiary hearing especially in light of the nature of petitioners' claims. Courts view conflicts of interest with particular concern because they infect and distort the judgment of defense coun- sel in ways that are often not reflected in the trial record. "Like the famous tip of the ice- berg, the record may not reveal the whole story; apparently minor instances in the record which sug- gest co-defendants’ conflicting interest may well be the telltale signs of deeper conflict." Lollar v. United States, 376 F.2d 243, 246-247 (D.C.Cir. 1967). Accordingly, courts have not hesitated to reverse the denial of a conflict of inte- rest claim where the defendant has been deprived of the opportunity for an evi- dentiary hearing. E.g., Porter v. 36 United States, 298 F.2d 461 (4th Cir. 1962); Zurita v. United States, 410 F.2d 477 (7th Cir. 1969). Petitioners' right to an evidentiary hearing becomes even clearer when the rules regarding a criminal defendant's right to the undivided loyalty of his counsel are brought into proper focus. C. Elements of Claim that the Constitutional Right to the Undividec Loyalty of Counsel Has Been Violated. In order for a defendant to establish that he has been deprived of the undivided loyalty of his counsel, it is sufficient for him to demonstrate: first, that his counsel was committed to an interest potentially in conflict with the defen- dant's interests; second, that his counsel made a choice between possible alternative courses of action -- such as pursuing (or failing to pursue) a particular line of cross-examination -- which could plau- sibly be construed as favoring the con- flicting interest at the expense of the defendant's interest; and third, that the course of action foregone by his counsel was a plausible one. See Comment, 37 Conflict of Interest in Multiple Represen- tation of Criminal Co-Defendants, 68 Journal of Criminal Law & Criminology, 226, 231-233 (1977). The defendant is not required to prove that his attorney did in fact sacri- fice the defendant's interest on account of his obligation to the conflicting inte- rest. The unfairness of requiring proof of subjective motivation is obvious, con- sidering the difficulty a defendant would have in getting his attorney to admit that he consciously compromised his client's interests. Consequently, a defendant need show only that the conflict in which his attorney was involved impinged on a choice made by the attorney in such a way that the choice was not, in the objective sense, the free choice of a disinterested attorney. /? 12 Indeed, courts have often not inquired into, or have even disregarded, counsel's own evaluation of the extent to which con- flicting obligations impeded defense stra- tegy. "(B]eyond determining whether the foreclosed defense was plausible, we are reluctant to speculate on what defenses (cont. on page 38) 38 12 (cont. from page 37) " counsel may have chosen... . Fox- worth v. Wainwright, 516 F.2d 1072, 1080 (5th Cir. 1975). The governing principle was well sum- marized in Comment, Conflict of Interests in Multiple Representation of Criminal Co-Defendants, 68 Journal of Criminal Law & Criminology 226, 231 (1977): "The question is not whether counsel actually perceived the conflict, or whether he would in fact have chosen to conduct the defense differently had there been no conflict. In fact, an attorney's skill in dealing with inconsistent interests by even handed compromise may even obscure on the record the basic unfairness to a de- fendant of subordinating his legiti- mate interests to other considera- tions. Thus it should be clearly recognized that although defense tac- tics provide the evidence from which a conflict can be inferred, trial stra- tegy is evaluated only in the sense that counsel must have been free to choose an appropriate defense” (foot- notes omitted) (emphasis in original). But it must be emphasized that while courts often disregard an attorney's denial that his advocacy was impaired by a conflict of interest, they often assign substantial, if not dispositive weight, to an attorney's admission that his advo- cacy was or would be impaired by a con- flict. Holloway v. Arkansas, 46 U.S.L.W. 4289 (U.S., April 3, 1978); Glasser ve (cont. on page 39) 39 Moreover, the defendant is also not required to demonstrate that had his coun- sel chosen the foregone alternative, the Outcome of the trial would have been affected. As indicated above, it is suf- ficient for the defendant to show that the foregone alternative was a plausible one. United States v. Donahue, 560 F.2d 1039, 1044-1045 (1st Cir. 1977); Foxworth v. Wainwright, 516 F.2d 1072, 1080 (Sth Cir. 1975); footnote 12 supra. As with other types of violations of the right to the effective assistance of counsel, the harmless error rule does not apply to violations of the right to undivided loyalty. Holloway v. Arkansas, 46 U.S. L.W. 4289, 4293 (U.S., April 3, 1978); Glasser v. United States, 315 U.S. 60, 76 (1942); Chapman v. California, 386 U.S. 18, 23 n. 8 (1967). 12 (cont. from page 38) United States, 315 U.S. 60 (1942); United States v. Hurt, 543 F.2d 162 (1976). This 1s important here because by denying de- fendants an evidentiary hearing, the courts below deprived the defendants of an opportunity to question their trial counsel about their own assessment of the impact of the conflict of interest. 13 See page 40. 40 D. Appiication of Legal Principles Here Applying these principles here, it is plain that petitioners are entitled to relief. Given the working relationship between Joyce, on the one hand, and Hurley and Mulkern on the other, /4 given Joyce's close relationship with Harringtor and Sargent, and given the direct role which Harrington and Joyce jointly played in 13 (from page 39) In Donahue, the court granted the defendant a new trial because his trial sounsel had been involved in a conflict of interest which may have affected the decision to reject an alternative trial Strategy. But in so ruling, the court specifically acknowledged that the stra- tegy actually chosen may have been supe- rior to the rejected strategy. a6 Where, as here, attorneys (such as members of the same law firm) are in- volved in a coordinated working relation- ship where there is a free flow of infor- mation, the interests of one will be im- puted to his colleagues for the purpose of ascertaining whether there is a con- flict of interest. See United States v. Donahue, 560 F.2d 1039, 1042 (list Cir. ; Commonwealth v. Geraway, 364 Mass, 168, 301 N.E.2d 814 (1973); Cinema 5, Ltd. v. Cinema, Inc., 528 F.2d 1384 (2d Cir. 1976); Laskey Bros., Inc. v. Warner Bros. Pictures, Inc., 224 F.2d 824 (2d Cir. 1955). 41 ensuring that the petitioners were re- presented by Hurley and Mulkern, it is clear that Hurley and Mulkern had commit- ments to persons -- Harrington and Sar- gent -- whose interests were at least in potential conflict with the petitioners’ interests. Harrington and Sargent plainly had a vital stake in not having their names exposed in a public trial as the recipients of payments from MBM -- pay- ments facially illegal if for no other reason than that they were in violation of Massachusetts State law prohibiting campaign contributions by corporations. Indeed, the substantiality of the interest Harrington and Sargent had in non-disclo- sure was graphically demonstrated by the storm of adverse publicity generated when the evidence of the payments to Harrington and Sargent first became public at the oral argument of petitioners' new trial motion in the district court. Thus, since it is plain that there was a potential conflict between the inte- rests of Harrington and Sargent, on the one hand, and DiCarlo and MacKenzie, on the other, the only further question is 42 whether trial counsel made a choice be- tween alternative courses of action which was infected by that conflict. Peti- tioners submit that there is no question that trial counsel's decision not to elicit the names of Harrington and Sar- gent, and not to pursue the line of de- fense which use of the names would have made possible, was just such a choice. The court of appeals’ attempt to discount the significance of the con- flict cannot succeed. The court states: "Concededly, Harrington and Sargent would have preferred not to be men- tioned as recipients of possibly il- legal payments,4 but, aside from that publicity, they have not been shown to have any other interest inconsistent with those of the defendants. ‘ In light of the present wide- spread concern over the MBM matter, of which we may take judicial no- tice, viewed by hindsight it would have been a considerable benefit to Harrington to have avoided the sub- ject of the $2,000 check, provided that such silence would have ended the matter. However, this informa- tion was in the government's posses- sion to begin with, and silence could not have been assured, regard- less of whether defense attorneys 43 pursued this line of inquiry." Opinion, p. 7a. The irony of this analysis is con- siderable. To attempt to diminish the evidence of conflict by saying that Har- rington and Sargent had no conflicting interest aside from that of avoiding ad- verse publicity is like saying a soldier has nothing to fear aside from getting killed. The magnitude of the interest which Har- rington and Sargent had in avoiding pub- lic exposure is measured precisely by the magnitude of the scandal initiated when the evidence of the payments was made public 1l months later. Nor is the court persuasive when it maintains that the conflicting interest which Harring- ton and Sargent had was diminished by the fact that the evidence of the payments was already in the government's possession. The evidence had presumably been in the government's possession for months when the prosecutor disclosed it to Hurley and Mulkern, and for all they knew, the government never had any intention of making the evidence public. (And, in fact, the government did not make the evi- dence public during the 1l months after 44 this disclosure to counsel although it had ample opportunity to do so.) Moreover, the affidavits annexed to petitioners' new trial motion plainly establish that Hurley and Mulkern were fully aware of the enormous political impact which disclosure of the evidence would have. Indeed, peti- tioner MacKenzie's affidavit reports that Hurley stated that the evidence "could blow the dome off the State House." A. 178. In sum, there can be no question that Harrington and Sargent had a vital interest in not being identified as the recipients of MBM payments, and that Hur- ley and Mulkern were fully aware of that interest. There can also be no question that the decision not to elicit tne names of Harrington and Sargent before the jury, and not to pursue the line of defense which use of the names would have made ’ possible, represented a choice between alternative courses of action that was infected by a conflict of interest. The court of appeals argues that "there were substantial risks involved in using these names which prudent counsel might very reasonably wish to avoid." Opinion, p. 6a. 45 But, as demonstrated above, the issue is not whether disinterested counsel could have come to the same ultimate conclusion as Hurley and Mulkern. The issue is rather whether the choice confronting Hur- ley and Mulkern was a free choice which they could make with only their clients' interests in mind. The facts set forth above clearly show that it was not such a free choice. The only remaining question is whether the alternative foregone by Hur- ley and Mulkern -- use of the names of Harrington and Sargent -- could plausibly have benefited petitioners. As indicated above, petitioners maintain that use of the names could have benefited them because it would have laid the groundwork for a "friends in high places” defense. The court of appeals seeks to discredit this defense by saying: "The suggestion that $2,000 pur- chased all-risk insurance, or that Harrington, for that amount, if requested, would have gone to DiCarlo and said, ‘You lay off,' is not cre- dible. Even less persuasive would be the thought that Sargent, the Republican governor, could have gone 46 to the’ Democratic chairman purpor- tedly investigating the propriety of a Republican-let contract, and said that MBM had paid enough already." Opinion, pp. 6a-7a. Two points must be made in response. First, this conclusory dismissal of the “friends in high places" defense is founded on nothing more than the court's Own speculation. Petitioners submit that the court's speculation is incorrect and that the evidence of the payments to Harrington and Sargent, when coupled with the other evidence in the case, may very well have persuaded the jury that MBM's claim of extortion was at least subject to a reasonable doubt. The test, more- over, is not whether the defense would have succeeded; it is rather whether the defense was plausible. There can be no question that the "friends in high places" defense meets this test. Second, the court of appeals' specu- lation about the "friends in high places" defense is totally unwarranted because | there exists a ready means for obtaining direct evidence. There is no justifica- tion for speculating on what Harrington or Sargent would or would not have done, 47 or what MBM officials would or would not have done, when it is possible to explore these questions directly in an evidentiary hearing. The law requires that before petitioners’ claim could possibly be rejected on the ground that the "friends in high places" defense was implausible, petitioners would have to be given an opportunity to develop that defense in an evidentiary hearing. In sum, under the three-part analysis described above, it is plain that peti- tioners are entitled to relief. E. The Erroneous Legal Analysis Adopted by the Court Below: The Bifurcation Between Dual Representation Standards and Joint Representation Standards Rather than applying the three-part analysis described above, the court of appeals applies a different legal analy- sis. In Miller v, United States, 564 F.2d 103 (lst Cir. 1977), the court of appeals distinguished between cases of "joint" representation, where the "“attor- ney's purported conflict of interest arises from the simultaneous representa- tion of two or more codefendants ina 48 single cause" and cases of "dual" repre- sentation, where the purpoted conflict arises from the attorney's concurrent representation of someone who was or might have been called as a witness. 564 F.2d at 106. The court stated: "Only a relatively slight showing of actual prejudice is required in joint representation cases, where an attor- ney is particularly susceptible to disabling conflicts . .. But ina ‘dual’ representation case ...a real conflict or specific instance of prejudice must be shown to esta- blish the deprivation of effective assistance of counsel." Id. In joint representation cases, the court does apply essentially the three-part ana- lysis described above. See, e.g., United States v. Donahue, 560 F.2d 1039 (lst Cir. 1977). But in dual representation cases, the court applies a more exacting analysis which requires the defendant to establish "a real conflict or specific instance of prejudice." Miller v. United States, 564 F.2d at 106. Four points should be made. First, petitioners maintain that the court of appeals’ bifurcation of legal standards -- one set of standards for joint representation cases, another set for dual representation cases -- is 49 totally improper. The court's only jus- tification for such bifurcation is that any attorney in joint representation cases is "particularly susceptible to disabling conflicts." Miller v. United States, 564 F.2d at 106. But while the generalization that an attorney in joint representation cases is more likely to be susceptible to disabling conflicts than an attorney in dual representations cases, may have some validity in a statistical sense, it is difficult to see how that generalization advances legal analysis in a particular case. The only legitimate way to determine wehther a defendant's right to undivided loyalty has been vio- lated is to examine the facts of each par- ticular case. Second, the court's standards for dual representation cases are hoplessly unclear. The court does not define, either in Miller or its opinion here, "real conflict" or "specific instance of prejudice" and does not explain how these concepts differ from the concept of the "relatively slight showing of actual pre- judice” that will require relief ina joint representation case. From its 50 opinion here, it appears that the court is saying that to obtain relief in a dual representation case, it is necessary for the defendant to show that his attorney subjectively intended to sacrifice his client's interests in favor of the con- flicting interest. But as indicated earlier, it is grossly unfair to require a defendant to prove his attorney's sub- jective motivation in any case, be it one of joint or dual representation, in view of the obvious difficulty a defendant would have in getting his attorney to admit that he consciously compromised his client's interests. Thus, it is clear that the three-part analysis described earlier must be applied equally to all conflict cases, regardless of whether they are cases of joint or dual repre- sentation, or, for that matter, any other type of case where a claim of conflict is made. Third, even assuming that the court below is correct in applying different standards to joint and dual representa- tion cases as a general matter, the court was wrong in applying dual, rather than joint, representation standards here. 51 Although Harrington and Sargent were not technically the codefendants of peti- tioners, their position was thoroughly analogous to that of codefendants. Hur- ley and Mulkern were called upon to pro- tect two sets of persons (petitioners, on the one hand; Harrington and Sargent, on the other) who both faced serious liabi- lity arising out of a related set of transactions. The court argues that the liability which Harrington and Sargent faced was significantly different from the petitioners' liability because dis- closure of their names to the jury But "could not have increased their potential criminal liability, nor could any tactic by defendants’ counsel have dccreased that lia- bility. Even if their names were not used, neither Harrington or Sargent, nor Joyce or Hurley could insure that the information, which the government already had, would not be revealed." Opinion, pp. 8a-9a. this takes an overly restrictive view of what Harrington and Sargent had to lose from exposure. For one thing, Harrington and Sargent faced the possibility of pro- secution by state, as well as federal, authorities. For another, it is not 52 unknown for public opinion to exert impact on the decision as to whether public offi- Ccials will be prosecuted. For a third, the interest which Harrington and Sargent had in avoiding public exposure was cer- tainly great enough by itself, putting aside any question of criminal liability, to provide a strong incentive to Hurley and Mulkern to avoid that exposure to any extent possible. If anything, the con- flict confronting Hurley and Mulkern was far more severe than the conflict usually present in a joint representation case precisely because the evidence against Harrington and Sargent was not public. Thus, joint representation standards should have been applied a fortiori.?> 15 It should also be noted that one of the court's reasons for not applying joint representation standards is the incorrect statement that "defendants do not claim that there ever was any attorney-client rela- tionship between Joyce, Hurley or Mulkern and Harrington or Sargent." . Opinion, p. 8a. In fact, petitioner's new trial motion (cont. on page 53) 53 Fourth, even assuming -- contrary to fact -- that the court of appeals was cor- rect in ruling that dual representation standards should be applied to the present case, the court's decision must still be reversed because petitioners were denied an evidentiary hearing. As indicated above, the court of appeals’ dual repre- sentation standards appear to require that in order to obtain relief, a defendant must show that his attorney subjectively intenaed to sacrifice his client's inte- rests in favor of a conflicting interest. This requirement is hard enough to meet when the defendant has been granted an 15 (cont, from page 52) alleges: "Mr. Joyce was and is the attorney, political advisor and close frien and associate of Governor Francis W. Sargent and Senate President Kevin B. Harrington." A. 148 (emphasis added). Moreover, if the precise relationship between Joyce, Hurley and Mulkern, on the one hand, and Harrington and Sargent, on the other, is critical to whether peti- tioners are entitled to relief, they should be granted an evidentiary hearing to explore that relationship. 54 evidentiary hearing. Where, as here, such a hearing has been denied, it is virtually impossible. The court of appeals states: "Taking . . . the issue whether trial counsel in fact gave weight to the interests of Harrington and Sargent, there is no direct testi- mony, nor could any reasonably be expected." Opinion, p. 4a. Given that one of the prime reasons peti- tioners requested an evidentiary hearing was so that they could subpoena their trial counsel as witnesses, this statement is extraordinary. There is "no direct testimony" on whether Hurley and Mulkern in fact gave weight to the interests of Harrington and Sargent only because peti- tioners were precluded from obtaining that testimony through denial of an evidentiary hearing. Nor can it be validly suggested that petitioners have failed to adduce enough evidence to justify an evidentiary hearing on the actual motivation of their trial counsel. The aggressive role which Har- rington and Joyce took in seeing to it that petitioner DiCarlo was represented by Hurley, and that petitioner MacKenzie was represented by Mulkern; the inside ee 55 information which Harrington had about the investigation of DiCarlo; Joyce's claim that he had a source in the Justice Department; and the irregular manner in which Hurley's fee was set -- all of these circumstances are indicative enough of a conscious attempt to manipulate petitioners’ defense so as to require full exploration of the issue at an evidentiary hearing. F. The Court of Appeals' Invalid Finding of Waiver In an effort to buttress its conclu- sion that petitioners are not entitled to relief, the court of appeals concludes its discussion of their conflict claim as follows: "Particularly is there a heavy burden of a defendant when the facts were known to him from the beginning, United States v. James, 5 Cir., 1975, 505 F.2d 898, cert. denied, 421 U.S. 1000, or, as in this case, long be- fore the trial ended instead of afterwards. Defendants selected Hurley precisely because Joyce had political connections. Such connec- tions are not simplistic, but extend in many directions. The least defen- dants could expect was the possibi- lity of some interface. The least 56 that, in turn, could be expected of defendants would be to make their own decisions when some such matters surfaced. Defendants were in no respect naive or unsophisticated. Nothing was concealed from them, including the fact that day after . day the trial was proceeding with- out their counsel disclosing ‘the names to the jury. They do not excite our sympathy when, having lost their case, they malign their counsel, and say they were put apon." Opinion, p. 9a. Although the court does not characterize it as such, this plainly amounts to a finding that the petitioners waived their rights. Moreover, it is finding unaided by an evidentiary hearing and based on little more than the court's speculation. Given that a waiver cannot be validly found unless the government carries its burden of showing that the defendant made a "knowing and intelligent waiver" of his right to undivided loyalty, it is plain that the court's reliance on waiver was grossly improper. This is especially true because "Every reasonable presumption against the waiver of fundamental rights is made in order to protect Sixth Amendment rights." Austin v. Erickson, 477 F.2d 620 (8th Cir. 1973). 57 Indeed, what the court stated in United States v. LaVallee, 282 F.Supp. 968, 971 (E.D.N.Y. 1968) applies with equal force here: "(Pletitioner did not learn of the conflict until during the trial, and may not be said to have assented to it by his silence. It is uncer- standable that a criminal defendant, not necessarily familiar with all of his constitutional rights... might not interrupt his trial to request that his attorney be POLAOWOGG « © © oe” Even where a defendant is well schooled in the law a waiver of the right to the undivided loyalty of counsel will not lightly be inferred. Glasser v. United States, 315 U.S. 60, 70 (1942) (failure of Glasser to object to joint representa- tion held not a waiver of his right to undivided loyalty even though Glasser was an experienced attorney). . _ > ctl 58 Conclusion The petition for a writ of certio- rari should be granted. Dated: June 1978 Respectfully submitted, FRANCIS J. DIMENTO DIMENTO & SULLIVAN 100 State Street Boston, Massachusetts Attorneys for Petitioner Joseph J.C. DiCarlo EARLE C. COOLEY HALE AND DORR 60 State Street Boston, Massachusetts DAVID J. FINE ROSENBERG, BAKER & FINE 133 Mt. Auburn Street Cambridge, Massachusetts Attorneys for Petitioner Ronald C. MacKenzie Of Counsel: ROSENBERG, BAKER & FINE 133 Mt. Auburn Street Cambridge, Massachusetts la United States Court of Appeals For the First Circuit No. 78-1026 UNITED STATES OF AMERICA, APPELLEE, v. JOSEPH J. C. DrCARLO and RONALD C. MacKENZIE, DEFENDANTS, APPELLANTS. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Water Jay Sxrnvyer, U.S. District Judge) Before Corrix, Chief Judge, Avpricn and CamMpBELL, Circuit Judges. Francis J. DiMcnto and Earle C. Cooley, with whom DiMento & Sullivan and Hale and Dorr were on brief, for appellants. Edward J. Lee, First Assistant United States Attorney, with whom Edward F. Harrington, United States Attorney, and Alan D. Ruse, Assistant United States Attorney, were on brief, for appellee. April 20, 1978 Aupricn, Senior Circuit Judge. This is an appeal from the denial of a new trial. Appellants, Joseph J. C. DiCarlo and Ronald C. MacKenzie, hereinafter defendants, were found guilty after a jury trial in the district court of con- spiracy to violate, and of substantive violations of, the Hobbs and Travel Acts, 18 U.S.C. §§ 1951 and 1952. The offenses involved the extortion by defendants, then Massa- chusetts state senators, of $40,000 from McKee-Berger- Mansueto, Inc. (MBM), a New York based construction 2a 2 : U. S. UV. DICARLO management firm, in connection with a report by a legis- lative committee chaired by DiCarlo concerning a state cou- tract with MBM. While their principal appeal was pending, defendants moved the district court for a new trial, alleg- ing, (1) constitutionally defective representation by de- fense counsel because of a conflict of interest, and because of incompetence; (2) a due process violation by the U.S. Attorney’s failure, in response to a discovery request, to turn over certain letters allegedly having impeachment value in regard to a key governmer’ witness; (3) jury misconduct; and (4) newly discovered evidence, in the form of recantation of the testimony of certain witnesses. In connection therewith, defendants requested an evidentiary hearing. In an extensive opinion, the district court denied defend- ants’ motion. Almost coincidentally, we rejected the prin- cipal appeal. United States v. DiCarlo, 1 Cir., 1977, 565 F.2d 802. Being of the view that our decision was uncert- worthy, First Cireuit Rule 17, we denied bail pending peti- tion therefor. Certiorari was thereafter denied, 46 U.S.L.W. 3586 (U.S., Mar. 21, 1978). In addition, in an unpublished memorandum, we refused to stay the district court’s refusal of bail pending the present appeal. At the outset is the threshold issue of the proper standard of review for a case in this posture. The government, focusing upon the fact that the relief sought is a new trial, argues that the decision below may not be reversed absent proof that the trial court committed an abuse of discretion —the standard applied for motions for new trials under F.R.Crim.P. 33. See United States v. Zannino, 1 Cir., 1972, 468 F.2d 1299, 1303, cert. denied, 410 U.S. 954. The district court, however, although defendants were not then in cus- tody, treated their first three claims as falling under 28 U.S.C. § 2255, and only the last as of the diseretionary scope of Rule 33. We agree. 3a OPINION OF THE COURT. 3 In seeking collateral’y to attack their convictions under section 2255, defendants bear the burden of establishing by a preponderance of the evidence that they are entitled to relief. Coon v. United States, 5 Cir., 1971, 441 F.2d 279, cert. denied, 404 U.S. 860. This includes the burden of showing that they are entitled, if they claim it, to an evi- dentiary hearing. Rule 4(b) of the Rules Governing Sec- tion 2255 Proceedings provides that the trial court may examine the record, the moving papers and any exhibits and affidavits submitted therewith and, on the basis of those materials, may summarily dismiss the motion if it ‘* plainly appears... that the movant is not entitled to relief.’’ Sec Miller v. United States, 1 Cir., 1977, 564 F.2d 103, 106: Moran v. Hogan, 1 Cir., 1974, 494 F.2d 1220. While genuine issues of material fact may not be resolved without a hearing, see Blackledge v. Allison, 1977, 431 U.S. 63, 80-81, a hearing is not necessary ‘‘when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the ease.’’ Moran v. Hogan, ante, 494 F.2d at 1222. Moreover. if the claim is based upon facts with which the trial court, through review of the record or observation at trial, is familiar, the court may make find- ings without an additional hearing, and, as is the case for findings of the trial court generally, those findings will not be overturned unless they are clearly erroneous. Bartelt v. United States, 5 Cir., 1974, 505 F.2d 647; Zovluck v. United States, 2 —‘r., 1971, 448 F.2d 339, cert. denied, 405 U.S. 1048. Ineffective assistance of counsel. Defendants’ attack upon trial counsel is in three layers. One is, broadly, that they were incompetent. This is a serious accusation to make against reputable and experi- enced attorneys. The court found it in no way borne out. 4a 4 U.S. V. DICARLO We need not detail the court’s reasons, nor consider the matter further, except to express surprise that, in light of their additional burden to overcome the district court’s findings, they continue to press a charge that was baseless to begin with. Secondly, it is claimed that in deciding not to elicit from certain witnesses the names of Senate President Kevin B. Harrington and former Governor Francis W. Sargent as recipients of questionable MBM payments, trial counsel were moved by concern for them rather than the interests of the defendants.’ Finally, defendants say that if, in fact, their counsel considered solely defendants’ best interests, there was, nonetheless, a constitutionally impermissible conflict of interest which required a new trial. Taking first the issue whether trial counsel in fact gave ‘weight to the interests of Harrington and Sargent, there is no direct testimony, nor could any reasonably be expected. Defendants must establish their claim by inference from the circumstances. The circumstances are these. About one year prior to the return of the indictments in this case, DiCarlo was informed by Harrington that DiCarlo was the object of federal criminal investigation. Harrington sug- gested that DiCarlo obtain the services of an attorney. He recommended Walter J. Hurley, an experienced crimi- nal defense lawyer, at all times relevant to this case associ- ated in the practice of law with Thomas M. Joyce. Joyce was a well known lobbyist, with many friends in Massachu- setts political circles, including Harrington and then Gov- ernor Sargent. DiCarlo met with Joyce, who stated that he knew someone in the Justice Department who would keep him abreast of the progress of the investigation, and thus enable him to alert Hurley of any developments. * We agree with the trial court that of all the alleged short- comings of trial counsel, the only one with any plausible relation- ship to the alleged conflict of interest is failure to use these names. 5a OPINION OF THE COURT. or DiCarlo retained Hurley. Thereafter, learning from flur- lev that MacKenzie was also under investigation, DiCarlo so informed MacKenzie. MacKenzie told DiCarlo that he intended to retain his present counsel, Earle C. Cooley, and DiCarlo reported this to Hurley. Hurley urged DiCarlo to persuade MacKenzie to retain, instead, Robert V. Mul- kern, a lawyer unconnected with him, or Joyce, but who he believed would cooperate in a coordinated defense. MacKenzie acceded, but, at various times thereafter, ex- pressed dissatisfaction. DiCarlo, at Hurley’s prompting, reassured MacKenzie that Mulkern was properly handling the case. It is unclear from the record whether Hurley was a partner of Joyce, or simply an associate, but, in any event, Joyce said he would set the fee, and ultimately did so.? DiCarlo’s checks to Hurley were endorsed for deposit to the account of Joyce’s law firm. On the sixth day of trial, the Assistant U.S. Attorney, Edward J. Lee, furnished Hurley and Mulkern with ma- terials containing reports of FBI interviews with MBM president MeKee, who was then on the stand, and MBM ofiicer, Jack Thomas, who had yet to testify. These ma- terials revealed, infer alia, statements of MBM officials that they had made payments to certain Massachusetts politicians, including $2,000 to Harrington and two $10,000 payments to one Albert Manzi, at least one alleged to be a political contribution to then Governor Sargent. On receipt of this material, defense counsel asked their clients whether the information should be used for the defense. DiCarlo’s affidavit states that he told his counsel to use the informa- tion, ‘‘if it’s helpful. Bring it out. Withhold nothing.”’ The trial transcript reveals that both defense counsel used the general material extensively. During cross-examination of the MBM witnesses, who were crucial to the govern- 2The record in no way supports some seeming suggestion in defendants’ brief that Jovee said he would himself pay the fee. 6a 6 U.S. V. DICARLO ment’s case, the issue of MBM’s political contributions, nationwide, was probed in great detail, but the names of these recipients were not mentioned. Defendants now claim their counsel improperly refrained out of consideration for Harrington and Sargent. We agree with the court’s finding that there were sub- stantial risks involved in using these names which prudent counsel might very reasonably wish to avoid. The jury might have viewed the dragging of prominent figures into the case a desperate, but not exculpatory, tactic, particu- larly if they had responded and denied receipt. Conversely, if it should appear that these contributions were in fact made, and illegal—there is some suggestion that the second alleged payment to Manzi was the result of raw political blackmail—it is hard to see how this would have helped persuade a jury that MBM had not been subject to, and capitulated to, similar conduct by defendants. In this posture defendants argue that if, in fact, MBM had made these prior payments it would have had ‘friends in high places’’ enabling it to resist importunities by de- fendants. The suggestion that $2,000 purchased all-risk insurance, or that Harrington, for that amount, if re- quested, would have gone to DiCarlo and said, ‘‘You lay off.’’ is not credible. Even less persuasive would be the thought that Sargent, the Republican governor, could have gone to the Democratic chairman purportedly investigating 3 Defendants also complain of their counsels’ failure to accept the government’s offer to locate one William Masiello and secure his presence at the trial, allegedly because he had been a former client of Mulkern. Quite apart from the fact that Masiello’s purported testimony was supplied only by a hearsay affidavit, cf. 6 J. Moore, Federal Practice, § 56.11 [1.-2] at 200 (2d ed. 1976), the court found that he would have been a dangerous witness (‘‘foolhardy’’) for defendants to call. We agree with the court that the failure to call Masiello in no way prejudiced the defend- ants. See United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505. 7a OPINION OF THE COURT. 7 the propriety of a Republican-let contract, and said that MBM had paid enough already. We accept the court’s view that defendants have offered nothing to persuade it that defendants’ counsels’ decision was not a wise one. Nor is this overcome by defendants’ claim that Hurley had a motive that conflicted with a decision to bring Harrington’s and Sargent’s names into the case—Joyce’s friendship with these individuals. Con- cededly, Harrington and Sargent would have preferred not to be mentioned as recipients of possibly illegal pay- ments,* but, aside from that publicity, they have not been shown to have any other interest inconsistent with those of the defendants. In fact, Harrington, at least, could be thought to have had a substantial interest in defendants’ acquittal. One need not read the newspapers to conceive the pall cast upon the legislature as a whole by an extortion conviction of two prominent senators. It is true that Joyce, as a lobbyist, wanted to cultivate friends with political power. Any concern for Sargent, however, would have been diminished by the fact that he was out of office by the time of trial. While he was friendly with Harrington, so he was with DiCarlo, who had already risen to a position of power. To put it crassly, we may wonder how it would improve his stature as a lobbyist if he were to sell out one senator, who was his client, for an incidental benefit to another, who was not. Defendants respond that the circumstances were such that they needed to prove no more than a possible conflict ‘In light of the present widespread concern over the MBM matter, of which we may take judicial notice, viewed by hindsight it would have been a considerable benefit to Harrington to have avoided the subject of the $2,000 check, provided that such silence would have ended the matter. However, this information was in the government’s possession to begin with, and silence could not have been assured, regardless of whether defense attorneys pursued this line of inquiry. 8a & . U. 8. V. DICARLO of interest, not an actual conflict. Concededly, there are such cases, but this was not one. In Miller v. United States, 1 Cir., 1977, 564 F.2d 103, we announced the standard by which claims of ineffective assistance of counsel based upon a conflict of interest are to be tested. There we distinguished between cases involving the joint representation of co- defendants by one attorney, or members of the same firm, and cases of dual representation where an attorney pres- ently has, or in the past has had, a legal relationship with a hostile party or witness. In the case of joint representa- tion of codefendants we held that only a relatively slight showing of actual prejudice is required to establish ineffec- tive assistance of counsel, because there an attorney ‘‘is particularly susceptible to disabling conflicts.’’ Jd. at 106: Holloway v. Arkansas, 46 U.S.L.W. 4289, 4293 (U.S., Apr. 3, 1978). However, where dual representation is involved, the danger of conflicts is not so great. Accordingly, a real conflict of interest or a specific instance of prejudice must be shown. /d. at 106; see United States v. Jeffers. 7 Cir.. 1975, 520 F.2d 1256, cert. denied, 423 U.S. 1066: United States v. Donatelli, 1 Cir., 1973, 484 F.2d 505. Defendants contend that their case presents similar dan- gers of conflict and thus should be governed by Miller's joint representation standard. However, the special seru- tiny given to instances where codefendants are represented by single counsel is not warranted here. First, obviously, there was no actual joint representation; each defendant had separate, unrelated counsel. Secondly, defendants do not claim that there ever was any attorney-client relation- ship between Joyce, Hurley or Mulkern and Harrington or Sargent. Finally, it is unsound to analogize the position of Harrington and Sargent to that of codefendants. Neither had been charged nor brought to trial. Disclosing their names to the jury as recipients of MBM’s payments could not have increased their potential criminal liability, nor 9a OPINION OF THE COUNT. 9 could any tactic by defendants’ counsel have decreased that. liability. Even if their names were not used, neither Har- rington or Sargent, nor Joyce or Hurley could insure that the information, which the government already had, would not be revealed. We, of course, do not suggest that an attorney may not have a pecuniary interest creating what we would term a per se disabling conflict. See, e.g., United States v. Hurt, D.C.Cir., 1976, 543 F.2d 162. When, however, the pecuniary interests are solely speculative—‘‘the mere possibility of additional work for a former client,’’—‘‘the presumption [is] that the lawyer will subordinate his pecuniary interests and honor his primary professional responsibility to hi- clients in the matter at hand.’’ United States v. Jeffers. ante, at 1265; see, also, United States v. McCord, D.C.Cir., 1974, 509 F.2d 334, 351-53, cert. denied, 421 U.S. 930. Particularly is there a heavy burden on a defendant when the facts were known to him from the beginning, United States v. James, 5 Cir., 1975, 505 F.2d 898, cert. denied, 421 U.S. 1000, or, as in this ease, long before the trial ended instead of afterwards. Defendants selected Hurley pre- cisely because Joyce had political connections. Such con- nections are not simplistic, but extend in many directions. The least defendants could expect was the possibility of some interface. The least that, in turn, could be expected cf defendants would be to make their own decisions when some such matters surfaced. Defendants were in no respect naive or unsophisticated. Nothing was concealed from them, including the fact that day after day the trial was proceeding without their counsel disclosing the names to the jury. They do not excite our sympathy when, having lost their case, they malign their counsel, and say they were put upon. Defendants have failed to allege or estab- lish a real conflict of interest or any actual prejudice. They are entitled to no relief. Miller v. United States, ante. ; 10a 10 U. 8. V. DICARLO Brady violation. Defendants next contend that the government’s failure to disclose two letters written by Assistant U.S. Attorney Lee to prospective customers of MBM violated their right to a fair trial under Brady v. Maryland, 1963, 373 U.S. 83. The letters were written prior to trial in response to in- quiries by certain governmental agencies that were con- sidering awarding contracts to MBM. After describing the indictment, MBM’s role, and its cooperation with the gov- ernment, the letters conclude that the U.S. Attorney was ‘“‘not aware of any reason why [MBM] should be disquali- fied from public work.’’ In their discovery request, defend- ants sought, ‘*23. All statements or promises or rewards of any kind, or tending in any way, directly or indirectly, to induce or encourage the giving of testimony, which statements have been made to any persons whom the Government intends to call as witnesses at the trial of the indictment herein. ‘*24. All evidence of any kind favorable to the de- fendants material either to guilt or punishment, in- cluding without limitation that which may tend to be exculpatory, to impeach or discredit incriminatory evidence or to mitigate the crime charged, or which may lead to evidence of such character.’’ Defendants maintain that the letters were recommendations of MBM by the government that would have been of value for impeaching MBM witnesses. Since defendants posit their principal argument upon United States v. McCrane, 3 Cir., 1976, 547 F.2d 204, re-affirming, after remand, 427 U.S. 909, for further con- sideration in light of United States v. Agurs, 1976, 427 U.S. 97, United States v. McCrane, 3 Cir., 1975, 527 F.2d 906, lla OPINION OF THE COURT’. ll we start with an examination of that case. There the de- fendants requested, ‘all material known to the government . . . which is exculpatory in nature or favorable to the defendant, or may lead to the discovery of exculpatory material or material which may be used to impeach prosecution witnesses ....”’ In response to a request by counsel for the principal prose- cution witness, the U.S. Attorney wrote letters about the witness to parties proposing to enter into contractual relations with him, corresponding much, in general outline, to the case at bar. In the earlier case of Brady v. Mary- land, ante, the prosecuting attorney, in response to a re- quest, had failed to disclose a statement of a third party that could be regarded as exculpatory. The Court held, ‘‘(S]uppression by the prosecution of evidence favorable to an accused upon request violates due - process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’’ 373 U.S. at 87. The first McCrane court, after noting that impeaching evidence fell within Brady, stated that a promise of prefer- ential treatment given to a witness by the government is admissible for impeachment purposes. It went on to say that ‘‘jurors might have felt that the mere act of writing the letters was preferential treatment.’’ 527 F.2d at 911-12. It, accordingly, found a violation of Brady and ordered a new trial. Although in Brady the Court made no point of it, the request called for all statements of a designated individual, and hence was, in fact, a ‘‘specific’’ request. In the initial McCrane opinion the court did not discuss the nature of the request. In United States v. Agurs, 1976, 427 U.S. 98, however, the Court distinguished between general and l2a 12 } U. S. UV. DICARLO specific requests. Refusal of a ‘‘specific and relevant’’ request ‘‘is seldom, if ever, excusable.’’ 427 U.S. at 106. This kind of request calls for any material evidence, i.e., ‘‘evidence [that] might have affected the outcome of the trial.’’ Jd. at 104.5 On the other hand, the Court said that a general request, e.g., ‘‘all Brady material,’’ or ‘‘anything exculpatory,’’ involves a very different standard. ‘‘The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if sup- ported by evidence establishing guilt beyond a reason- able doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not other- wise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reason- able doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of rela- tively minor importance might be sufficient to create a reasonable doubt.’’ 7d. at 112-13. [Footnotes omit- ted. | Upon remand for reconsideration in the light of -Jaurs, the McCrane court concluded that its prior decision was correct under either alternative. If the defendant's request were to be construed as merely general, the evidence met * For the benefit of the bar we do not read this phrase as corre- sponding with a later remark by the Court that ‘‘a jury’s appraisal of a case ‘might’ be affected by an improper or trivial consideration us well as by evidence giving rise to a legitimate doubt on the issue of guilt.’ Jd. at 108-9. Rather, we would apply the usual rule of demonstrably harmless error. Chapman v. California, 1967, 386 U.S. 18, 24. Nor, of course, must a request be answered just because it is specific. The initial question is whether it is Brady material. l3a OPINION OF THE COURT. 13 Agur’s standard of materiality. But also, and it is for this that defendants seek to rely on it, the court regarded thie request as specific, hence imposing the more liberal stand- ard of materiality. In resolving this latter issue in favor of defendant the court relied or. a statement in the govern- ment’s brief which, although the government expres=ly denied that the request was specific, the court construed a~ a concession that it was. We will not pursue the correctnes> of the court’s construction; the government makes no such statement here. However, unless the government had ~o conceded, we consider the McCrane request a classic ex- ample of a non-specific request as defined in Agurs. and decline to accept MeCrane’s contrary view. See United States v. Hearst, N.D.Cal., 1977, 435 F.Supp. 29, 30-31, aff’d, 9 Cir., 563 F.2d 1331, 1352. We also reject McCrane’s above-quoted statement that ‘‘the mere act of writing the letters was preferential treat- ment,’’ unless read in conjunction with the evidence, elsc- where noted, that they were written at the request of the witness’s counsel. This, however, brings us to the case at bar, where defendants claim that No. 23 was a specific request. In construing No. 23 as not calling for the U.S. Attor- nev’s letters the district court said, ‘‘The subject letters were not ‘recommendations,’ were not communications to or requested by MBM and were neutral in their impact.”’ For present purposes we will assume the incorrectness of part of this statement; the letters were sufficiently recom- mendatory that we would consider them to be ‘‘rewards"’ © We do, however, note the extraordinary claim in present de- fendants’ brief that the concession by government counsel in this unrelated case in another circuit estops the government here. This would be extraordinary even if defendants could claim, which they make no pretense of doing, that they knew and relied on it. a necessary condition of estoppel. SR ; l4a 14 U. 8. VU. DICARLO if, but only if, a statement had been made to a MBM witness which put them in that light. There was no impeaching significance in the letters themselves. They were not rele- vant unless, as the final clause of the request specified, they were intended to influence the witness. Clearly, they could not influence the witness unless there had been a statement to him, either a promise that they would be written, or, at the least, subsequent communication en- abling him to realize that he had been rewarded. Not only is this clear, but the request itself, which appears carefully drawn, recognizes there would have had to have been a ‘‘statement’’ to the witness. The specificity of the request, in other words, related to any statement, not to the letters themselves.’ There is nothing to overcome the U.S. Attor- ney’s response that there was no such statement. It may be conceded that the letters fell within the terms of a general request, of which No. 24 was a good example, secking anything that might lead on to something else. Nere, however, because of its generality, the government does not face the strict sanction which attends the refusal of a specific request. The district court properly applied the general test, and found that defendants failed? We have considered the record, and find no reason to disagree. Misconduct by jurors. We may pass quickly over defendants’ complaint, sup- ported by the statements of two alternate jurors, that the jury was exposed to certain unspecified newspaper and television accounts of the trial, and that the jurors dis- * Alternatively, if the request sought more, it failed to meet the basic requirement of a specific request, ‘‘notice of exactly what the defense desired.’" Agurs, 427 U.S. at 106. 8**!The] letters would not in my view have created a reasonable doubt as to the guilt of the defendants. in the light of strong and persuasive evidence of guilt introduced at the trial. In the language of the Supreme Court the omission to furnish these letters was not material ‘in the context of the entire record.’ United States v. Aqurs, supra, 112.’ 15a ; OPINION OF THE COURT. 15 cussed the case among themselves. The district court held these assertions to be ‘‘insubstantial’’ and that the docu- ments submitted revealed no ‘‘material derogation of the defendants’ right to a fair trial,’’ and thus neither an evidentiary hearing nor a new trial was warranted. Defendants waived sequestration of the jury, thereby assun‘ing the risk that the jurors would come in contact with some publicity concerning the trial. No relief is war- ranted without a showing that the publicity resulted in prejudice. United States v. Perrotta, 1 Cir., 1977, 553 F.2d 247; United States v. D’ Andrea, 3 Cir., 1974, 495 F.2d 1170, cert. denied, 419 U.S. 855. Court and counsel carefully monitored the press coverage of the trial. On two occasion~ a potentially prejudicial article and television report were brought to the court’s attention. Following the procedures required by Perrotta, the court polled the jurors as to whether they had seen them. In each case, all jurors re- sponded that they had not. Defendants now claim that similar inquiry should have been made as to other unspecified publicity allegedly seen or heard by the jurors. The court was correct in rejecting this claim. Absent specification of particular pieces of pub- licity, and a showing of their potentially prejudicial effect, it had no duty to inquire further. The court also found insubstantial defendants’ claim of pre-deliberation discussion of the case by the jurors, and consideration by the jurors of defendants’ failure to tes- tify. We agree. Quite apart from the fact that the alternate juror, who was the source of the statement that the jurors considered the defendants’ failure to testify, was not pres- ent during the jury’s deliberations following the court’s charge, this claim flies in the face of the familiar principle that a verdict may not be impeached by a juror’s testimony that the jury was guilty of misconceptions of fact or law, employed unsound reasoning, indulged in improper argu- ment, etc. See, e.g., Young v. United States, 10 Cir., 1947, omnes Ae nemes e e l6a 16 ; U.S. VU. DICARLO 163 F.2d 187, cert. denied, 332 U.S. 770; 6A J. Moore, Fed- eral Practice, 1 59.08[4] at 148-49 (2d ed. 1974). While there are exceptions, the present case is far from such. Newly discovered evidence. Defendants submitted three unsworn statements, two by witnesses at the trial, and one by the wife of one such witness, to support their claim, pursuant to F.R.Crim.P. 33, for a new trial on the ground of newly discovered evidence. The purported evidence takes the form of the recantation of two witnesses, Harding and Shields, concerning the July 6, 1972 meeting in New York City at which some of de- fendants’ extortionate threats allegedly were made. The witnesses did not retract their testimony as to the fact of the meeting, but only suggested that they had been mis- taken as to its date, which they now believe to have been sometime during the spring of 1972. So much was deficient with respect to these statements that we merely list the areas. Passing the fact that the court expressly disbelieved Shield’s new version,® and im- pliedly did so as to Mr. and Mrs. Harding, whose state- ments, it found, were at least in part dictated by DiCarlo’s new counsel, no explanation is offered for six months’ delay, rather than eliciting this testimony at trial, or is offered to meet the ‘‘considerable skepticism,’’? Lemire v. McCarthy, 1 Cir., 1978, 570 F.2d 17, 21, which attends recantation. The trial court’s findings will not be disturbed. United States v. Johnson, 1946, 327 U.S. 106, 111-12. We have considered the other arguments advanced by defendants and find them to be without merit. The order of the district court is affirmed. * As to Shield’s testimony, the court noted, ‘Mr. Shield was an extremely articulate, assured and self- possessed witness. His manner was somewhat hostile to the United States Attorney. I cannot credit [defendants’ claim] —— testimony was extracted from him against his will. 17a UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS UNITED STATES OF AMERICA, Plaintiff, Vv. CRIMINAL NOS. 76-339-1-S 76-339-2-S JOSEPH J.C. DiCARLO and RONALD C. MacKENZIE, Defendants. MEMORANDUM AND ORDER ON MOTION FOR A NEW TRIAL January 17, 1978 SKINNER, D.J. The defendants have filed and argued this motion for a new trial under Fed.R. Crim.P. 33. Among other things, they seek an evidentiary hearing on the questions raised in the motion. In their brief they suggest that the standard to be applied for holding an evidentiary hearing is that applicable to motions to vacate judgment under 28 U.S.C. §2255. This is not a motion under §2255, and such a motion might not presently be in order, since the defendants are not yet in custody. Newly discovered evidence must be asserted under Rule 33. The other grounds may not have been timely raised under Rule 33, but nevertheless might be the subject of a subsequent motion under §2255. To avoid rehearing these issues at some other time, a 18a and to put them in a posture *.o be decided on the merits, I will treat the issues, other than newly discovered evi- dence, as if they were properly before me On a motion under 28 U.S.C. §2255. The standard to be applied with respect to holding an evidentiary hearing under Rule 33 is the sound discretion of the court. The standard to be applied in §2255 appears in Rule 4 of the Rules Governing Section 2255 Proceedings: If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. A. NEWLY DISCOVERED EVIDENCE 1. Letters from Assistant United States Attorney to Potential Customers of MBM The defendants are now in possession of two letters! from the Assistant United States Attorney written in answer to requests from potential customers of McKee~Berger-Mansueto, Inc. (MBM) for in- formation as to the status of MBM. In | each case the letter details’ the facts of the case and ends up with the assertion 4 Exhibit A to motion and Exhibit 1 to government's opposition. 19a that the United States Attorney knows of no reason why MBM should be "disqualified from public work." Defendants insist that they shouid have been given these letters in response to pre-trial discovery requests under the rule of Brady v. Mary- land, 373 U.S. 83 (1963), in view of the fact that the government's principal wit- nesses were employees and former emplo- yees of MBM. The requests were as follows: "23. All statements or promises or rewards of any kind, or tending in any way, directly or indirectly, to induce or encourage the giving of testimony, which statements have been made to any persons whom the Government intends to call as wit- nesses at the trial of the indict- ment herein.” [phmphasis supplied.] "24. All evidence of any kind favorable to the defendants material either to guilt or punishment, including without limitation that which may tend to be exculpatory, to impeach or discredit incriminatory evidence or to mitigate the crime charged, or which may lead to evi- dence of such character." The emphasized language of request 23 specifically excludes the letters in ques- tion. Request 24 is so general as to place no burden on the government to pro- duce the letters in addition to that which would be constitutionally required in the absence of any request. United States v. Agurs, 427 U.S. 97, 106-7 (1976). Applying the standards of the case just cited, I find and rule as follows: LD A Ot ee me 20a The subject letters were not "recom- mendations," were not communications to or requested by MBM and were neutral in their impact. Even if they had been ad- missible, which is doubtful, they would not in my view have created a reasonable doubt as to the guilt of the defendants, in the light of strong and persuasive evidence of guilt introduced at the trial. In the language of the Supreme Court the omission to furnish these letters was not material "in the context of the entire record." United States v Agurs, supra, 112. United States v. McCrane, 427 F.2 906 (3d Cir. 1975), vacated and val 427 U.S. 909 (1976), following remand, 547 F.2d 204 (3d Cir. 1976), relied upon by defendants, even if it states the law in this circuit, is distinguishable on all of the above grounds. Accordingly, the failure of the government to furnish the letters to the defendants before trial does not require an evidentiary hearing and does not warrant the allowance of the d . piety efendants 2. Recanted Testimony of Hardin and Shields - . Defendants concede that recantation of testimony is viewed with suspicion by. courts. Mr. Harding's attention was focused on the meeting with defendants in New York during conversations with FBI agents and the U.S. Attorney, during his grand jury testimony and at the trial of this case. Suddenly, six months after the trial, upon being visited at their 2la home by defendant DiCarlo'’s new attorney Francis J. DiMento~ and by his cousin William DiMento, a former legislative assistant to DiCarlo, Mr. and Mrs. Harding remember details of clothing that place the meeting in cold weather, earlier than the July 6 date relied upon by the govern- ment. The circumstances and timing of this resurrection of memory do little to dispel the traditional suspicion referred to above. Mr. Shields' unsworn statement asserts that his testmony was incorrectly extracted from him as a result of sugges~- tion by the United States Attorney and "exhaustive questioning." In exercising my discretion in the matter of granting a new trial, I must rely to some extent on my personal observation of the witness. Mr. Shields was an extremely articulate, assured and self-possessed witness. His manner was somewhat hostile to the United States Attorney. I cannot credit the statement that untrue testimony was extracted from him against his will. The statements of Harding, Mrs. Harding and Shields annexed to the motion do not war- rant the allowance of a motion for a new trial. 2 At argument, it appeared that these statements and those of Mr. Shields were in part dictated, at least as to form, by Attorney DiMento himself. 22a B. MISCONDUCT OF JURORS The defendants allege that the trial jurors disobeved instructions in that they read newspaper accounts and watched teievision reporcs of the trial, and further that they discussed the case amcng themselves. This assertion is sup- ported by an affidavit of one alternate juror and a report of a newspaper inter- view with another alternate juror. Neither jusoxc participated in the verdict. When the decision was made not to sequester the jury, a decision assented to by the defendants, it was to be ex- pected that the jury would be exposed in some degree to publicity about the trial. The question is whether such publicity was prejudicial. United States v. D'Andrea, 495 F.2d 1170 (3d Cir.), cert. denied, 419 U.S. 855 (1974); see United States v. Perrotta, 553 F.2d 247, 249 (Ist Cir. 1977). Defendants assert that the court is required to hold an evidentiary hearing on their allegations. Thatmight be true under some circumstances if any substan- tial instances of prejudice were asserted. In this case, however, the media coverage was carefully monitored by counsel and the court. It consisted, for the most part, of straighforward reports of the trial proceedings. Such editorial com-. ment as occurred was generally favorable to the defense. On two occasions, arti- cles having to do with extraneous matters appeared in weekly newspapers of rela- tively limited circulation, and on one occasion prejudicial comments were made in a television newscast. In each case 23a inquiry was made of the jurors, all of whom responded that they had not read the articles or heard the program. The defendants' motion does not refer to any other prejudicial item of publicity, trial counsel mentioned none, nor were present counsel able to furnish me with an example at argument on this motion. In the absence of some indica- tion of the existence of evidence of actual prejudice, the assertions of counsel do not warrant the allowance of the motion for a new trial. Discussion of the case among the jurors prior to being excused to deli- berate was a violation of the court's instruction, strictly construed. The important thing, however, is that the jury resist any systematic discussion which would foreclose open-minded con- Sideration of the whole case. Nothing in the defendants’ supporting documents sug- gests that the latter occurred, and in fact the jury deliberated for seven hours before reaching a verdict. The defen- dants cite no authority for granting a new trial under these circumstances. One aiternative juror has said, apparently in response to a reporter's question, that it might have made a dif- ference in the result of the case if the defendants had taken the stand and denied their guilt. "This statement falls far short of suggesting that the jurors used 24a the fact that the defendants elected not to take the stand to overcome any rea- sonable doubt of the defendants’ guilt. The same juror is reported to have said, in fact, that, "There was so much evi- dence, but just by the facts that were presented, it did seem to me that they were guilty."° Accordingly, I find and rule that the defendants' assertions of jury mis- conduct are insubstantial, that the sup- porting documents do not indicate that there was any material derogation of the defendants' right to a fair trial, and that nothing before me warrants the holding of an evidentairy hearing or the allowance of the defendants' motion for a new trial. C. INEFFECTIVE ASSISTANCE OF COUNSEL The defendants finally assert that they were deprived of their Sixth Amend- ment right to effective counsel. For purposes of this motion I will assume the following facts contained in the defen- dants' affidavits: About a year prior to the return of the indictment in this case, DiCarlo was informed by Kevin Harrington, the presi- dent of the Massachusetts Senate, that DiCarlo was the object of a federal in- vestigation which might result in an indictment. He 3exhibit AA to the defendants' motion. OE et tn RS eee 25a suggested that DiCarlo secure the ser- vices of Attorney Walter Hurley, described as an associate of Attorney Thomas Joyce. Attorney Joyce is a lobbyist who is well- known to Harrington, DiCarlo, MacKenzie, and many other political figures in Massachusetts, including former Governor Prancis W. Sargent. DiCarlo followed this advice and retained Attorney Hurley. DiCarlo learned from Hurley that MacKenzie was involved in the investigation and so informed MacKenzie. MacKenzie indicated that he would engage Attorney Earl Cooley, his present counsel, and DiCarlo reported this to Hurley. Hurley strongly urged DiCarlo to persuade MacKenzie to engage Attorney Robert Mulkern, of Worcester, because of the necessity of a coordinated defense. DiCarlo was suc- cessful, and MacKenzie retained Mulkern. One of the reasons for retaining Hurley and Mulkern was that they were in contact with Joyce, who was supposed to have a source of information in the Department of Justice in Washington which would enable him to report the progress of the government's investigation. At various times MacKenzie expressed some dissatisfaction, but DiCarlo, at — Hurley's insistence, persuaded MacKenzie that Mulkern was properly preparing the case. The amount of the fee paid Hurley was established by Joyce and endorsed for deposit to the account of Joyce's law firm. 26a I will further take judicial notice of the fact that Hurley and Mulkern are attorneys of good reputation; that Hurley in particular is a specialist in the de- fense of criminal cases in both state and federal courts, and has had particular experience in cases charging public offi- Cials with corrupt acts, including Hobbs Act cases; and that Hurley and Mulkern have previously worked as co-counsel in the defense of criminal cases, notably the so-called small loans cases in the state courts. These matters were called to the attention of present defense counsel, who agreed as +o the accuracy of the above. Defendants argue that trial coun- sels' connection with Joyce caused them to subordinate the interest of the defen- dants to those of Joyce's associates, Harrington and Sargent, by failing to use certain evidence and undertake cer- tain lines of cross-examination. Of the various alleged failings of counsel, only one can conceivably have any relatior- ship to the allged relationship of the lawyers to Joyce, and through im to Harrington and Sargent. No possible reason had been sug- gested for supposing that the convic- tion of the defendants would be of any possible advantage to Harrington and Sargent. DiCarlo was a close associate . of Harrington. The conviction of both defendants was likely to diminish the reputation of the Senate and of Harring- ton as its presiding officer. Sargent had been out of office since 1974. Accordingly, with respect to all of the alleged failures of counsel except the eee eo, ee ee 27a decision not themselves to use the name of Harrington and Sargent, the standard of judgment is not that applicable to "joint" or "dual" representation, but that applicable to allegations of inef- fective representation of counsel gene- rally. That standard is whether inept- ness of counsel rendered the defense a sham, a farce, or a mockery. Moran v. Hogan, 494 F.2d 1220 (lst Cir. 1974). With respect to the alleged failure to use supposed alibi evidence and cross- examine on supposed promises to MBM, I find that there was a sound tactical basis for each decision. In making that finding I have reviewed the significant sections of the twenty-three volume transcript of the trial, and considered the defendants’ allegations in terms of the utility of the evidence, consistent strategy, and exposure to rebuttal by the government. A detailed recapitula- tion of my review would require a summary of the entire trial. I am satisfied that the conduct of counsel did not render the defense such a farce and mockery as would require a new trial. Moran v. Hogan, supra. On the sixth day of trial, the Assistant United States Attorney fur- nished the defendants with material required under 18 U.S.C. §3500 with respect to the witness McKee, who was on the stand, and witness Jack Thomas, who had not yet testified. This ; material revealed, among other things, statements of MBM officials that they had made a payment of $2,000 to Senate President Harrington and two further payments to one Albert Manzi, 28a purpotedly for the campaign fund of Governor Sargent, in response to a threat that if no payment were made Manzi would see to it that MBM received no con- tracts from the state Bureau of Building Construction. Defense counsel made a motion for a mistrial on the ground that this material was exculpatory and should have been furnished in advance of trial in accordance with Brady v. Maryland, 373 U.S. 83 (1963). I denied this motion on the ground that the material was not exculpatory. I also made it clear to all counsel that there were no restrictions on the use of the material in cross-examination of the government's witnesses. Defense counsel stated that they considered the question of MBM's activities important but that the names weren't important. The Assis- tant United States Attorney made it clear that if the matter were pursued, it was likely that the names of the alleged payees would be brought out "in order to make the record clear from the govern- ment's point of view." (T. 6-20 through 6-48) .4 Thereafter defense counsel pressed the question cf MBM's political contri- butions at every stage of cross-examina- tion of MBM's witnesses, at greath length and in great detail. At any point, the names of Harrington and Manzi could have | come out through the witnesses or on redirect examination. 4 the word "galloped" on 6-26, l. 23, should be "galloping." ————— 29a DiCarlo's affidavit says that he told his attorney to use this material "if it's helpful. Bring it out. With- hold nothing." The transcript clearly shows the extensive use of the material by both defense counsel. Present counsel say that it was also incumbent on counsel to bring out the names of Harrington, Sargent, Kelly and White as recipients of payments. The defendants’ directions were not so explicit. I find that reasonable attorneys could differ with present counsel as to the unmixed blessings which would accure to the defendants if they themselves attempted to involve other well-known political figures in the case. The record reveals no failure to exercise proper profes- sional judgment. Defendants also say that trial coun- sel should have made greater attempts to find the ubiquitous Masiello and put him on the stand. In my view, given that Masiello was trying to avoid testimony, and would be reluctant and possibly hos- tile, given his relationship to the defendants and to Kelley, and given his presence at various critical meetings, prudent counsel might well consider that to expose him to cross-examination by the United States Attorney would be fool- hardy. The defendants’ allegations describe "dual representation,” not "Joint representation” and specific instances of prejudice must be shown. Miller v. United States, No. 77-1193 Tist Cir., October 27, 1977). It plainly appears from the record that no specific instance of prejudice occurred and no evidentiary hearing is necessary. 30a Defendants in their brief point out that failure of effective assistance of counsel may not always appear on the "cold printed record." This may be true when the matter is presented to an appel- late court. On a motion for a new trial, however, the trial judge has the benefit of his own observations. Such observa- tions are far from infallible, but may be relied upon to some extent when con- firmed by the record. It was may obser- vation that the defense was conducted by counsel with ingenuity and vigor. Every reasonable motion was presented and ob- jection taken. Interrogation and argu- ment was forceful, thorough and skilled. Upon a complete review of the record, I am satisfied that the defen- dants were well represented by able and loyal counsel. D. IN GENERAL In considering a motion for a new trial, the court should consider not only the specific allegations separately, but together, to determine if in the aggre- gate they demonstrate that the defendants were deprived of a fair trial. Upon examination of the entire record, I am satisfied that the defen- dants received a full and fair trial, and were convicted on the basis of sub- stantial credible evidence which fully warranted a finding of guilt beyond a reasonable doubt. | Accordingly, the motion for a new trial is DENIED. The motion for bail and for a stay of execution is DENIED. 3la The government's motion for immediate surrender of the defendants is ALLOWED, the defendants to be surrendere forth- with. WALTER JAY SKINNER United States District Judge 32a AFFIDAVIT Suffolk, ss. Boston, Massachusetts December 12, 1977 I, Edward J. Lee, being duly sworn, herby depose and Say as follows: 1) I am an Assistant United States Attorney, and under the direction of the United States Attorney, James N. Gabriel, was responsible for preparation and pro- secution of the case of United States v. Joseph J.D. DiCarlo and Ronald C. Mac- Kenzie, Criminal No. -~359-S; 2) At no time during the investiga- tion or trial of the above-captioned case did I state, represent, or pormise to Gerald McKee or any other representative of MBM, that I, or anyone associated with the Government, would write any letter of recommendation in connection with any business enterprise in which MBM was engaged, or wished to engage, as any in- ducement or reward for testimony or co- Operation by MBM with the Government. Nor did I, or anyone associated with the Government to my knowledge, ever write or offer to write such a letter of recom- mendation; 3) I further state that the sole representations made on behalf of the Government to MBM and its officers and employees were those set forth in Exhibit U to Defendants’ Motion for a New Trial. /s/ Edward J. Lee EDWARD J. LEE First Assistant U.S. Attorney Ett eed ie vurbelin Pee ne 33a he above- Then personally appeared t named Edward J- Lee and made oath ay the foregoing statements are true to the best of his knowledge and belief. Before me. /s/ Ruth A. Pike NOTARY PUBLIC My Commission Expires: 7-18-80 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1180%3A1. Public record. Not legal advice.